Canada: Competition Bureau Outlines International Merger Priorities And Tribunal Clarifies Third-Party Challenge Rights

SPEECH OUTLINES BUREAU PRIORITIES

On September 10, 2014, Senior Deputy Commissioner of Competition, Mergers, Lisa Campbell outlined the Competition Bureau's (Bureau) international priorities and announced new initiatives during a speech at the Global Antitrust Enforcement Symposium at Georgetown University Law Center in Washington, D.C.

  • Collaboration with U.S. Agencies: Earlier this year, the Competition Bureau and the U.S. antitrust agencies issued a set of "Best Practices" for cooperation between them in merger investigations. Senior Deputy Commissioner Campbell's speech emphasized the enforcement successes that this cooperation has delivered already, including coordinated efforts to review a merger that the parties ultimately abandoned following concerns raised by both the Bureau and the U.S. Department of Justice.
  • Engaging Other Agencies: For several years the Bureau has been heavily involved in promoting international cooperation with agencies in countries with emerging economies. Senior Deputy Commissioner Campbell noted new efforts the Bureau is making in this regard, including engagement with Chinese agencies to facilitate merger reviews involving state-owned enterprises and upcoming engagement between the Bureau and the Competition Commission of India.
  • Upcoming Bureau Innovation Workshop: The Bureau is increasing its focus on the role of innovation in competition, including a review of its Intellectual Property Enforcement Guidelines. Senior Deputy Commissioner Campbell announced that the Bureau would host a workshop to discuss the role of innovation in antitrust on November 4, 2014 in Ottawa.

More insight into these topics will likely emerge next week as Senior Deputy Commissioner Campbell participates on a panel discussing agency coordination in global mergers at the Fall Competition Law Conference of the Canadian Bar Association's National Competition Law Section. Brian Facey, Chair of the Blakes Competition, Antitrust & Foreign Investment group, will moderate that panel.

TRIBUNAL DECISION CLARIFIES THIRD-PARTY CHALLENGE RIGHTS

On September 8, 2014 the Canadian Competition Tribunal (Tribunal) released a decision in Kobo Inc. v. The Commissioner of Competition. The case involves an application by a third party to set aside a consent agreement entered into by the Commissioner of Competition (Commissioner) and four investigated parties in resolution of the parties' alleged anticompetitive conduct under section 90.1 of the Competition Act (Act), which deals with non-criminal agreements between competitors. The Tribunal held that its jurisdiction to consider a third-party challenge to a consent agreement was limited to inquiring:

  • Whether the terms of a consent agreement are within the scope of the type of order that the Tribunal is permitted to issue
  • Whether a consent agreement identifies (a) each of the substantive elements of the civil provision in question and (b) contains (i) an agreement that each element has been met or (ii) a statement that the Commissioner has concluded that each element has been met and that the investigated party does not contest the conclusion. The Tribunal held that withholding such information "would potentially undermine public confidence in the administration and enforcement of the Act." 
  • Whether the terms of the consent agreement are unenforceable or would lead to no enforceable obligation, for example, because they are too vague

The Tribunal held that "it is not open to [a third-party] applicant . . . to attempt to establish that one or more of the substantive elements of a [civil provision of the Act] have not in fact been met, or that a defence or exception set forth in the Act is applicable." 

In its decision, the Tribunal has given significant deference to the Commissioner to resolve alleged contraventions of the civil provisions of the Act by way of a consent agreement. Parties that resolve investigations by the Commissioner under a consent agreement are less likely to face challenge by a third party provided that the consent agreement meets the above criteria. Given that the above criteria require that reference be made to Bureau findings about the elements of the provision of the Act, this may have consequences for parties that are exposed to private actions in connection with their conduct. Tribunal decisions can be appealed to the Federal Court of Appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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